Port Richmond Elevator Co., Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1967

167 N.L.R.B. 608 (N.L.R.B. 1967)

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Port Richmond Elevator Co., Inc., and South Atlan-
tic and Gulf Coast District , International
Longshoremen 's Association , AFL-CIO, Peti-
tioner , and Seafarer's International Union of
North America, Atlantic, Gulf , Lakes and Inland
Waters District , Marine Allied Workers Division,
AFL-CIO, Intervenor . Case 23-RC-2356
September 28, 1967
DECISION AND DIRECTION
OF ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND J ENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer C. L.
Stephens of the National Labor Relations Board.
The Employer and the Intervenor filed briefs with
the Board.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks a unit consisting of all
operation and maintenance employees, excluding
office clerical employees, guards, watchmen, and
supervisors, at the grain elevator leased by the Em-
ployer at Galveston, Texas. The Employer does not
question the appropriateness of the unit sought by
the Petitioner, but requests that the unit description
be broadened to exclude "managers, merchandis-
ers, superintendents, foremen, grain mixers, super-
visory trainees, clerks, and all other supervisors,
professional employees, and guards as defined by
the National Labor Relations Act, as amended." At
the hearing the Petitioner agreed to the exclusion of
all of the categories set forth in the Employer's
proposed unit description except one clerk, referred
to in the record as "foreman's office clerk," and su-
pervisory trainees. The Petitioner also agreed to the
i The SIU was permitted to intervene on the basis of its assertion of a
contractual interest
L United Industrial Workers of Seafarers International of North Amer-
ica, Gulf, Lakes and Inland Waters District , Marine Allied Workers Divi-
exclusion of grain mixers only so long as the present
incumbent, who was agreed to be a supervisor, is
retained in the position. The Intervenor, the SIU,
contends that the unit that it represented when the
elevator was operated by the Employer's predeces-
sor, the Trustees of Galveston Wharves, is an ap-
propriate unit.
The record shows that the Intervenor
represented a unit of "inside" employees at the time
the Trustees of Galveston Wharves operated the
elevator and the "outside" employees were
represented by the Petitioner. The record also
shows that the unit represented by the SIU con-
sisted entirely of white employees, while the unit
represented by the ILA was composed entirely of
Negro employees. There is also evidence that none
of the Employer's employees at the time the Inter-
venor filed its motion to intervene in this proceed-
ing had been members of the SIU unit at the time
Galveston Wharves operated the elevator. And
finally the record shows that after assuming control
of the elevator the Employer merged the two units
into one, freely transferring its employees among
the jobs performed in the two units.
The SIU's unit position is essentially based on its
claim, asserted both in proceedings before the
Federal courts2 and before this Board, that Port
Richmond is legally a "successor" to Galveston
Wharves and, as such, is obligated to bargain with
the SIU as representative of the unit of "inside"
employees which the SIU represented in dealing
with Galveston Wharves. Thus, the SIU filed
charges with this Board of violation by Port
Richmond of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. We are administratively
advised, however, that the General Counsel of the
Board has refused to issue complaint based on such
charges. The matters alleged are essentially asser-
tions of unfair labor practices under the Act; they
were not litigated in this representation proceeding.
In view of these foregoing circumstances3 and the
disclosure in this record of the apparent demarca-
tion of the former units along racial lines,' together
with the change in operations which has resulted in
a commingling of employee functions as between
those working inside and those outside the elevator,
we find the unit sought herein by the SIU to be in-
appropriate.
The record shows that at the time of the hearing
no supervisory trainees were employed by the
Respondent. We shall therefore not make a deter-
mination at this time as to the unit inclusion or ex-
clusion of such trainees.5
The foreman's office clerk is a salaried employee.
He wears the same type of dress as do the em-
Sion, AFL-CIO v Board of Trustees of Galveston Wharves , 351 F 2d
183 (C A 5), 368 F 2d 412 (C A 5)
' See Times Square Stores Corporation, 79 N LRB 361, 365
' New Deal Cab Company, Inc , 159 N LRB 1838
Ulrich Manufacturing Company, 127 N LRB 239, 241
167 NLRB No. 90
PORT RICHMOND
ployees conceded to be supervisory, and he comes
under the hospitalization plan covering supervisory
employees rather than the plan covering hourly em-
ployees. He has the right to discharge employees,
and he gives orders to other employees concerning
the specific bins in which various grades of grain are
to be placed. We find that the foreman's office clerk
is a supervisor and shall exclude him as such from
the unit.
As above noted, the Petitioner agreed to the ex-
clusion of the grain mixer, but only as long as this
position was held by the incumbent at the time of
the hearing. In view of the parties' agreement that
the incumbent grain mixer at the time of the hearing
6 An election eligibility list , containing the names and addresses of all
the eligible voters , must be filed by the Employer with the Regional
Director for Region 23 within 7 days after the date of this Decision and
Direction of Election The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall be
ELEVATOR CO. 609
is a supervisor, we so find, and he is therefore ex-
cluded, but, in the absence of relevant record
evidence, we shall make no determination as to any
other occupant of this position.
We find that the following employees constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All operation and maintenance employees at the
Employer's Galveston, Texas, Grain Elevator B,
but excluding office clerical employees, guards,
watchmen, and all supervisors as defined in the Act.
[Direction of Election6 omitted from publication.]
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear
Inc , 156 NLRB 1236